Aloi v Bertola [No 2]
[2013] WASC 214
•29/05/13
ALOI -v- BERTOLA [No 2] [2013] WASC 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 214 | |
| Case No: | CIV:2589/2012 | 9 NOVEMBER 2012, 16 APRIL 2013; FURTHER WRITTEN SUBMISSIONS | |
| Coram: | PRITCHARD J | 29/05/13 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' action dismissed Interlocutory injunction discharged | ||
| B | |||
| PDF Version |
| Parties: | CARLO TONY ALOI ALOI HOLDINGS PTY LTD FASTBALL NOMINEES PTY LTD PATRICK BERTOLA COLIN JAMES STEPHEN FOX EUGENE KOLTASZ RORY O'BRIEN PATRICK DICK As Members of the Metro East Joint Assessment Panel |
Catchwords: | Prohibitory injunction Whether leave should be granted to re-open the plaintiffs' case Procedural fairness Whether basis for apprehended bias Planning and Development (Development Assessment Panels) Regulations 2011 (WA) |
Legislation: | Local Government (Constitution) Regulations 1998 (WA) Planning and Development (Development Assessment Panels) Regulations 2011 (WA) Planning and Development Act 2005 (WA) |
Case References: | Abebe v Commonwealth (1999) 197 CLR 510 Australian Electrical Eletronics Foundry and Engineering Union (WA Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145 Bateman's Bay Local Aboriginal Land Council and Anor v Aboriginal Community Benefit Fund Pty Limited and Anor (1998) 194 CLR 247 Bleechomre and Ors (1983) 32 SASR 145 Commonwealth v Queensland (1975) 134 CLR 298 Croome v Tasmania (1997) 191 CLR 119 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 Friends of Elliston – Environment and Conservation Inc v State of South Australia and Ors (2007) 96 SASR 246 Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269 Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1983) 32 SASR 145 Jolly v District Council of Yankalilla [2006] SASC 53 McGovern and Anor v Ku-ring-gai Council and Anor (2008) 72 NSWLR 504 Melfont v AG (Queensland) (1991) 173 CLR 289 Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 Myra Pty Ltd v Thompson [2011] WASC 230 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 Re Judiciary and Navigation Act (1921) 29 CLR 257 Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor (2007) 34 WAR 403 Smith v New South Wales Bar Association (1992) 176 CLR 256 Webb v The Queen (1994) 181 CLR 41 Wong v The Queen (2002) 207 CLR 344 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
ALOI HOLDINGS PTY LTD
Second Plaintiff
FASTBALL NOMINEES PTY LTD
Third Plaintiff
AND
PATRICK BERTOLA
COLIN JAMES
STEPHEN FOX
EUGENE KOLTASZ
RORY O'BRIEN
PATRICK DICK
As Members of the Metro East Joint Assessment Panel
Defendants
Catchwords:
Prohibitory injunction - Whether leave should be granted to re-open the plaintiffs' case - Procedural fairness - Whether basis for apprehended bias - Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Legislation:
Local Government (Constitution) Regulations 1998 (WA)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development Act 2005 (WA)
Result:
Plaintiffs' action dismissed
Interlocutory injunction discharged
Category: B
Representation:
Counsel:
First Plaintiff : Mr D R Williams QC & Mr H R Robinson
Second Plaintiff : Mr D R Williams QC & Mr H R Robinson
Third Plaintiff : Mr D R Williams QC & Mr H R Robinson
Defendants : No appearance
First Intervenor : Mr R M Mitchell SC & Ms C A Lakewood
Second Intervenor : Mr P C Doherty
Solicitors:
First Plaintiff : Haydn Robinson
Second Plaintiff : Haydn Robinson
Third Plaintiff : Haydn Robinson
Defendants : No appearance
First Intervenor : State Solicitor for Western Australia
Second Intervenor : Karp Steedman Ross-Adjie
Case(s) referred to in judgment(s):
Abebe v Commonwealth (1999) 197 CLR 510
Australian Electrical Eletronics Foundry and Engineering Union (WA Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Bateman's Bay Local Aboriginal Land Council and Anor v Aboriginal Community Benefit Fund Pty Limited and Anor (1998) 194 CLR 247
Bleechomre and Ors (1983) 32 SASR 145
Commonwealth v Queensland (1975) 134 CLR 298
Croome v Tasmania (1997) 191 CLR 119
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303
Friends of Elliston – Environment and Conservation Inc v State of South Australia and Ors (2007) 96 SASR 246
Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269
Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1983) 32 SASR 145
Jolly v District Council of Yankalilla [2006] SASC 53
McGovern and Anor v Ku-ring-gai Council and Anor (2008) 72 NSWLR 504
Melfont v AG (Queensland) (1991) 173 CLR 289
Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98
Myra Pty Ltd v Thompson [2011] WASC 230
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Osborne v Landpower Developments Pty Ltd [2003] WASCA 117
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
Re Judiciary and Navigation Act (1921) 29 CLR 257
Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor (2007) 34 WAR 403
Smith v New South Wales Bar Association (1992) 176 CLR 256
Webb v The Queen (1994) 181 CLR 41
Wong v The Queen (2002) 207 CLR 344
1 PRITCHARD J: On 10 April 2012, the Shire of Mundaring entered into a contract (the First Contract) with Morrison 232 Pty Ltd (Morrison) for the sale of two lots of land in Midvale (the Land).1 Morrison is a company controlled by Devwest Retail Pty Ltd (Devwest).
2 It was a condition of the First Contract that Morrison obtain planning approval for the development of a shopping centre on the Land within a specified period (the proposed development). On 5 June 2012, Devwest lodged an application for development approval of the Land as a shopping centre (the Development Application).2 As I explain below, the Development Application is required to be determined by the Metro East Joint Development Assessment Panel (the JDAP).
3 Mr Aloi owns a property in the vicinity of the Land and he and the other plaintiffs have commercial interests in shopping centres in nearby suburbs.3 The plaintiffs oppose the proposed development. The plaintiffs commenced this action seeking injunctive relief to restrain the JDAP from determining the Development Application. The basis for the plaintiff's action is a claim of apprehended bias on the part of the JDAP in determining the Development Application.
4 The JDAP proposed to consider the Development Application on 20 September 2012. On 19 September 2012 I granted the plaintiffs' ex parte application for an interlocutory injunction to restrain the JDAP from doing so until 27 September 2012, so that the JDAP and Devwest could be given the opportunity to be heard in relation to the application for an interlocutory injunction.
5 The Court was subsequently advised that the JDAP members would abide the decision of the Court. On 27 September 2013 I made orders granting leave to intervene to the Minister for Planning (the Minister) and Devwest. On 17 October 2012 I made orders which, among other things, dispensed with the requirement for pleadings, on the basis that the action – which was solely concerned with the question of the apprehension of bias - would proceed to trial on the basis of an agreed statement of facts, and written and oral submissions by the plaintiffs and interveners. The interlocutory injunction was extended until further order of the Court.
6 For the reasons set out below, I would dismiss the plaintiffs' action, and discharge the interlocutory injunction.
7 These reasons for decision deal with the following matters:
1. The Agreed Facts and the relevant statutory context;
2. Developments after the trial;
3. Further evidence upon which the plaintiffs sought to rely
4. The plaintiffs' claim of a reasonable apprehension of bias is not made out.
1. The Agreed Facts and the relevant statutory context
8 It is convenient to start by noting some key aspects of the statutory context, and the agreed facts (which were set out in a Statement of Agreed Facts filed in the action).
(a) Planning approval for the proposed development
9 Planning approval is required for the proposed development pursuant to the Planning and Development Act 2005 (the PD Act).4 As the Land is located within the Shire, and is subject to the Shire's Town Planning Scheme No 3 (TPS 3),5 the proposed development would ordinarily require planning approval from the Shire as the 'responsible authority', pursuant to cl 6.1 of TPS 3.
10 Within 60 days after the receipt by a Council (as the responsible authority) of a development application, or such longer period as the applicant and the Council agree, the Council must consider the application and any submissions received.6 The matters a Council must, or may, take into account in dealing with an application for planning approval are set out in cl 6.6(1)(a) and cl 6.7 of TPS3. In determining an application for planning approval, the Council may, amongst other things, refuse to grant approval, grant approval either conditionally or unconditionally, or defer consideration or determination of the application to a later meeting if further information or a more detailed investigation is required.7
11 However, because of the estimated cost of the proposed development, the Development Application must be determined by the JDAP (which is the development assessment panel established for the Shire of Mundaring) and not by the Shire, pursuant to the Planning and Development (Development Assessment Panels) Regulations (the DAP Regulations).8 The provisions of the PD Act and TPS 3 apply to the JDAP as if it were the 'responsible authority' under the planning instrument.9
12 An applicant for development approval has a right to seek a review by the State Administrative Tribunal of a decision or deemed refusal by the Council in relation to the application.10 Similarly an applicant for development approval whose application was dealt with by a JDAP has a right to seek a review by the Tribunal of a refusal, condition or deemed refusal in relation to its development application.11
13 On 31 July 2012 the Shire resolved to adopt Local Planning Scheme No 4 (LPS4) with modifications, and to forward LPS4 to the Minister for Planning and the Western Australian Planning Commission for approval, pursuant to regulation 18 of the Town Planning Regulations 1967. LPS4 has yet to be approved by the Minister for Planning pursuant to s 87(2) of the PD Act. Accordingly, TPS3 remains in force.
(b) The DAP Regulations
14 The procedures for dealing with applications for planning development which must be determined by a JDAP are set out in the DAP Regulations.
15 The members of a JDAP comprise three persons appointed to the JDAP as specialist members, and two local government members included on the local government register as representatives of the relevant local government in relation to the development application (the local government members).12 An alternate member may be appointed by the Minister for any person included on the local government register, and that person may act in place of the local government member if that person is unable to perform their functions by reason of illness, absence or other cause.13
16 At a meeting of a JDAP, a quorum comprises three members including the presiding member, another specialist member, and one of the local government members.14 Each member of the JDAP who attends a meeting has a single vote on a decision to be made by the JDAP.15 A matter to be decided by a DAP must be decided by a majority of votes of the members present.16 In the event of an equality of votes, the presiding member also has a casting vote.17
17 A JDAP must comply with any practice notes about the practice and procedure of Development Assessment Panels.18 The DAP Standing Orders have been issued as practice notes.
18 In addition, each JDAP member must comply with a code of conduct in respect of DAPs.19
(c) The Development Application
19 On or about 5 June 2012, Devwest lodged the Development Application with the Shire. Devwest also submitted a Notice of Development Application to be determined by the Development Assessment Panel (DAP Notice), pursuant to the DAP Regulations reg 10(1).
(d) The Shire's entry into the First Contract
20 The process adopted by the Shire in relation to the Sale of the Land, prior to the First Contract was as follows.
21 The Shire has an Investment Property Committee (IPC) comprising the Shire's Chief Executive Officer (CEO) and three external persons appointed for their specialist knowledge and experience of the property industry. The IPC's purposes include advising the Council of the Shire in relation to its freehold property holdings, making such decisions concerning the freehold property holdings of the Shire as may be within the powers delegated to it by Council, approving arrangements under delegated authority of the Council for the implementation of any decision approved by the Council for the sale of any of the Shire's freehold property holdings, and disposing of property (subject to some qualifications which are not presently relevant).
22 On 19 August 2010, the IPC resolved unanimously that appropriate subdivisional plans for the Land be drawn up and progressed to planning approval. On 16 December 2010 the IPC resolved unanimously that a business plan be advertised in accordance with the provisions of s 3.59 of the Local Government Act 1995 (WA), which permitted either an englobo sale or subdivision of the Land. On the same date, the IPC resolved that subject to consideration of any public submissions on the advertised business plan, the Shire proceed on the basis of the sale of the Land as an englobo parcel, with the caveat that if no unconditional offer in excess of $5.8 million were received, the Land be withdrawn from sale and the subdivision option be further considered. At the same time, the IPC also resolved that planning consultants be requested to prepare and submit a subdivision application to the Western Australian Planning Commission for a nine-lot subdivision of the Land.
23 On 8 February 2011, the Council of the Shire resolved unanimously in terms of the IPC's resolution of 16 December 2010. Mr Bertola and Mr James were present at that meeting, but Mr Fox was not.
24 In or about February 2011, the Shire published a public notice of a major land transaction relating to the Land, together with the business plan, and invited submissions in relation to those documents by 31 March 2011.
25 On 21 April 2011, the IPC resolved unanimously that the Land be marketed for sale on an ‘Offers Invited' basis.
26 On 16 June 2011, during the course of an IPC meeting, the Shire's CEO was advised that there had then been 10 queries in relation to the Land, of which only two were likely to have been made by potential purchasers.
27 On 15 September 2011, the IPC received a progress report in relation to the possible sale of the Shire's Land.
28 On or about 22 December 2011, the Shire caused to be published a notice of proposed disposition of the Land for $5.75 million and invited submissions in relation to that proposal by 5 January 2012.
29 On 15 December 2011, the IPC resolved unanimously that an offer from Morrison to purchase the Land be accepted, subject to conditions including that the offer be conditional upon the buyer having a period of 180 days from acceptance of the offer to obtain development approval from the Shire for a shopping centre on the Land (and if that approval were not obtained, the offer would expire and all deposit monies would be refunded to the buyer).
30 On 16 February 2012, the IPC resolved unanimously that an offer from Morrison 'as trustee for the Morrison Trust' to purchase the Land for $5.75 million (subject to updated conditions) be accepted.
31 As I have noted above, on 10 April 2012, the Shire entered into the First Contract with Morrison. The obligations of the parties were conditional on the grant of planning approval for the proposed development within 180 days of the date of the First Contract.20 The Shire and Morrison later agreed to a variation of the First Contract to extend the deadline for obtaining planning approval to a date 270 days after the date of the First Contract.
32 In or about July 2012, the Shire caused public notice of the proposed development to be published, inviting submissions by 2 August 2012.21 Numerous submissions were received, including eight from the plaintiffs.22
33 Pursuant to the DAP Regulations the Shire is required to give the JDAP a report on the Development Application (the Responsible Authority Report).23 The Responsible Authority Report must provide sufficient information to enable the JDAP to determine the application and must include the Shire's recommendation as to how the application should be determined.24
34 The Shire provided the JDAP with a Responsible Authority Report in relation to the Development Application, in which it recommended the conditional approval of the Development Application.
(e) The JDAP
35 The Minister has appointed the following specialist members to the JDAP: Mr Eugene Koltasz (the Presiding Member of the JDAP), Mr Matthew Young (Deputy Presiding Member), Mr Rory O'Brien (Alternate Deputy Presiding Member), Dr Garry Middle (Specialist Member) and Mr Patrick Dick (Alternate Specialist Member).
36 Mr Bertola and Mr Fox are the two local government members included on the local government register of JDAPs as representatives of the Shire. Mr James has been appointed by the Minister as an alternate member for Mr Bertola and Mr Fox on the JDAP.
(f) The Councillors
37 Mr Bertola, Mr Fox and Mr James are members of the Council for the Shire (the Councillors).
38 On becoming members of the Council, each of the Councillors made a declaration in the following terms:25
I take the office upon myself and will duly, faithfully, honestly, and with integrity, fulfilling the duties of the office for the people in the district according to the best of my judgment and ability, and will observe the Local Government (Rules of Conduct) Regulations 2007.
2. Developments after the trial
39 The trial was held on 9 November 2012. Before judgment could be delivered, the plaintiffs' solicitors contacted the Court and advised that the First Contract had lapsed, that the Development Application had also lapsed, that the injunction sought by the plaintiffs no longer had utility, and that it was not necessary for the Court to deliver reasons for decision. The solicitors for Devwest then advised that Devwest's position was that the Development Application remained on foot. The plaintiffs subsequently advised that they did not maintain that the Court's reasons for decision were not required.
40 However, the lapse of the First Contract raised for consideration the question whether the Development Application had any continuing utility. If not, a decision of the Court in the present circumstances would constitute merely a hypothetical or advisory opinion. The provision of a decision which would constitute no more than an advisory opinion on a hypothetical question would be inconsistent with the proper exercise of judicial power.26
41 In order to resolve the factual position and to ascertain whether there was any utility in proceeding to issue reasons for decision in the circumstances, on 12 March 2013 I made orders permitting the parties and interveners to file further affidavits and submissions addressing the status of the Development Application. The plaintiffs and Devwest each filed a further affidavit and submissions.
42 Devwest filed an affidavit of Mr Chad William Ferguson sworn 21 March 2013. Mr Ferguson's evidence was that the Contract lapsed according to its terms (by virtue of the expiry of the time permitted under the Contract for obtaining planning approval) on about 5 January 2013. Annexed to Mr Ferguson's affidavit was a copy of a subsequent offer by Morrison to purchase the Land,27 which Mr Ferguson said was made on 31 January 2013. That offer contained terms relevantly identical to those in the First Contract, including that the offer was conditional upon Morrison receiving approval from the Shire to construct a shopping centre on the Land.
43 Annexed to Mr Ferguson's affidavit was a copy of a letter dated 18 March 2013 in which an officer of the Shire advised Morrison that the Shire had accepted its offer and that the formal contract would be forwarded shortly (which I understood to mean that a signed acceptance of Morrison's offer would be forthcoming shortly). There was no dispute between the parties that the Shire and Morrison have entered into another contract for the sale of the Land (the Second Contract).
44 Mr Ferguson's evidence was that Devwest intends to proceed to settlement of the Land under the Second Contract and to develop the Land in accordance with the Development Application if it is in due course approved by the JDAP.
45 The plaintiffs filed a Supplementary Affidavit of Carlo Tony Aloi sworn on 26 March 2013. Nothing in that affidavit disputed the facts set out in Mr Ferguson's Affidavit of 21 March 2013.
46 I have taken Mr Ferguson's evidence into account in determining how the lapse of the First Contract and the entry into the Second Contract bear on the present action.
47 In view of these developments, however, it is appropriate to clarify the basis upon which I have proceeded to determine the action, notwithstanding the lapse of the First Contract.
48 There is authority for the proposition that an applicant for planning approval does not require an interest in the land the subject of the application for approval.28 However, the owner of the land is required to provide written authorisation for the application to be made.29 Development approval may be refused if the application is hypothetical, namely where an applicant has no reasonable prospect of obtaining an interest in the land sufficient to enable the applicant to lawfully proceed with the development.30
49 The material contained in Mr Ferguson's affidavit confirms that the Shire and Morrison have entered into the Second Contract for the sale of the Land. Although Devwest is not the purchaser of the Land, Morrison is a company controlled by Devwest. The extent of Devwest's potential interest in the Land has not changed despite the lapse of the First Contract and the entry into the Second Contract by Morrison and the Shire.
50 It remains a matter for the JDAP whether to approve the Development Application and accordingly I express no view on whether Devwest has a reasonable prospect of obtaining an interest in the Land sufficient to permit it to proceed with the development of the Land. It suffices to say that for the reasons outlined above I am nevertheless satisfied that the lapse of the First Contract does not mean that the present action has become merely hypothetical.
3. Further evidence upon which the plaintiffs sought to rely
51 Mr Aloi's Supplementary Affidavit went far beyond the contemplated scope of the orders I made on 12 March 2013 permitting the parties to file supplementary affidavits in relation to the status of the Development Application.
52 Mr Aloi's Supplementary Affidavit contained information of two kinds. First, annexed to Mr Aloi's Supplementary Affidavit were a number of documents which apparently came into existence, and bore on events, prior to the trial (the additional pre-trial material). Mr Aloi deposed that he became aware of the existence of the matters referred to in these documents only as a result of affidavits filed in related Supreme Court proceedings in February 2013.31 Mr Aloi's Supplementary Affidavit also referred to a number of factual matters which took place after the trial (additional post-trial material).
53 Counsel for the plaintiffs did not, at least initially, make an application to re-open the plaintiffs' case, but submitted that the additional pre-trial material reinforced the plaintiffs' contention of apprehended bias on the part of the JDAP. When pressed by the Court, counsel for the plaintiffs submitted that 'the Court ought to look at the additional material and … that the hearing ought to be reopened to enable further proceedings to make sure that we can establish that there is a reasonable apprehension of bias'.32
54 To the extent that this was intended to constitute an application for leave to re-open the plaintiffs' case, I decline to grant the plaintiffs leave to do so, for the following reasons.
55 First, Mr Aloi deposed that he had only received the additional pre-trial material as a result of participation in other litigation earlier this year, so this was not a case where a deliberate decision had been made not to rely on the additional pre-trial material. That being the case, the principles governing the admission of fresh evidence provide some assistance in the exercise of the Court's discretion as to whether to grant leave to re-open.33
56 Secondly, the plaintiffs did not put forward any explanation as to why the additional pre-trial material could not have been uncovered through the exercise of reasonable diligence.34
57 Thirdly, although it was not submitted that re-opening the hearing would cause prejudice to the other parties or intervenors, the trial was some time ago, and was conducted on the basis of agreed facts. To admit the additional pre-trial material and the additional post-trial material in circumstances where counsel for Devwest opposed reliance on it would represent a marked departure from the basis upon which the trial was conducted.
58 Finally, as I explain below, I am not persuaded that the admission of any of this additional material would have made any difference to the result,35 so that in my view, no injustice would be caused36 by refusing the plaintiffs leave to re-open their case to adduce the additional pre-trial and post-trial evidence.
59 Mr Aloi deposed that the additional pre-trial material contributed to a high level of apprehension of bias by the Councillors in their role as members of the JDAP, for reasons which were, in essence, that:
(i) the Shire had made a cursory analysis of the financial position of Devwest and Morrison;
(ii) advice given to the Shire did not support development of the Land as a shopping centre;
(iii) the Shire had published only one business plan in March 2011 (which the plaintiffs consider to be stale) but there was no explanation from the Shire as to why it had not proceeded with an industrial subdivision as set out in the Shire's business plan in March 2011;
(iv) the Shire resolved to allow the Development Application to proceed, notwithstanding that the business of the Shire does not include development of its land for a shopping centre;
(v) although the draft LPS4 (which the plaintiffs contend is a 'seriously entertained planning proposal'37) proposes that use of the Land as a shopping centre be prohibited, the Shire's Responsible Authority Report to the JDAP recommended that the Development Application be approved; and
(vi) the Shire submitted its Responsible Authority Report on 5 September 2012 when at that stage (according to the plaintiffs) the Development Application had not been correctly made. (The plaintiffs say that the Development Application was submitted by Devwest in late May 2012 but was not signed by the land owners (that is, the Shire) as required, and that that omission was only rectified on 12 September 2012.)
60 As this outline illustrates, much of the additional pre-trial material appeared to pertain to the merits of the Shire's decision to sell the Land to Devwest, and to the merits of its support for the Development Application in its Responsible Authority Report to the JDAP (having regard to the fact that Devwest proposes to develop the Land for a shopping centre). The present action is not concerned with the merits of the Shire's decision to sell the Land, with the merits of the Shire's recommendation in the Responsible Authority Report, or with the merits of the proposed development. Other aspects of the additional pre-trial material appeared to duplicate the tenor of matters already touched on at the hearing. Accordingly, even had I permitted the plaintiffs to adduce the additional pre-trial material, it would not have made any difference to the conclusions I have reached.
61 Mr Aloi deposed that the additional post-trial material also meant that the plaintiffs' apprehension of bias on the part of the Councillors who are members of the JDAP was at a high level. He deposed that that was so because the additional post-trial material, in essence, indicated that:
(i) although the First Contract did not come to an end until 5 January 2013, the Shire commenced a new sale process prior to that date, without any explanation as to why that was done, or as to why the First Contract was not extended by the Shire (as it could have been);
(ii) there was no explanation from the Shire as to why it had not simply extended the period for satisfaction of the condition in the First Contract when it had previously indicated that it would be prepared to consider an extension;
(iii) Devwest proposed to pursue the development application at a time when there was no second contract in place, and when there was no apparent benefit to either Devwest or Morrison in doing so;
(iv) The Shire took the view that the lapse of the First Contract did not affect the validity of the Development Application;
(v) the Shire sought public submissions in relation to Morrison's second offer to purchase the Land prior to the closing date for offers; and
(vi) prior to its acceptance of Morrison's second offer, the Shire had received a superior offer from another party to purchase the Land, but that offer was not accepted by the Shire.
62 I am unable to see how the additional post-trial material is of relevance to the question of apprehended bias on the part of the Councillors who are members of the JDAP. Some of the additional post-trial material, for example, appears to be directed to the merits of the Council's decision to sell the Land to Morrison. Other material – namely the fact that the Shire and Devwest both took the view that the lapsing of the First Contract did not affect the Development Application – was relied upon because it was said to give rise to the impression that the Shire and Devwest were working 'hand in glove'.38 However, in this respect, the additional post-trial material does not materially add to the tenor of the allegations advanced during the hearing, namely that because of the Council's interest in proceeding with the sale of the Land, and the Councillors' duty to the Shire, the Councillors have a conflict of interest in relation to their role on the JDAP in dealing with the Development Application.
63 It is clear from the plaintiffs' supplementary submissions that in view of the fact that the Second Contract has been entered into by the Shire and Morrison, the plaintiffs continue to hold the same concerns about the JDAP's determination of the Development Application based on the grounds of apprehension of bias.
64 Given the First Contract has lapsed, and the Second Contract is now on foot in materially the same terms, for ease of reference in the balance of these reasons I have simply referred to the Contract, save where it is necessary to identify precisely the Contract under discussion.
4. The plaintiffs' claim of reasonable apprehension of bias is not made out
65 In this section of my reasons I deal with the following matters:
(a) The basis for the apprehended bias claim;
(b) The plaintiffs' claim of apprehended bias applies to the JDAP as a whole;
(c) The principles in relation to the test for a reasonable apprehension of bias;
(d) The content of the duty to afford procedural fairness – manifested in the bias rule – in this case; and
(e) Why the plaintiffs have not made out their claim of apprehended bias.
(a) The basis for the apprehended bias claim in respect of the JDAP
66 Absent a clear manifestation of a contrary legislative intention, a decision maker who is exercising a statutory power which affects rights or interests has a duty to accord procedural fairness.39 One of the incidents of that duty is that the decision should be made free from actual bias and without the appearance of disqualifying bias (the bias rule).40
67 The submissions of the plaintiff and the interveners proceeded on the basis that the rules of procedural fairness, and specifically the bias rule, apply to the JDAP. Clearly that is so. Nothing in the PD Act or the DAP Regulations manifests any intention that a JDAP and its members are not subject to a duty to accord procedural fairness in making decisions in respect of applications for planning approval. Moreover, various provisions in the PD Act and the DAP Regulations are consistent with a requirement to afford procedural fairness by the application of the bias rule.41
68 I note at this point that the Minister expressly abandoned reliance on a contention in his written submissions to the effect that the JDAP did not owe a duty of procedural fairness (manifested in the bias rule) to the plaintiffs.42 In addition, counsel for each of the interveners confirmed that no challenge was made to the standing of the plaintiffs to bring the action seeking injunctive relief.43
69 Apprehension of bias arguments generally arise in four categories of case, which sometimes overlap: disqualification by interest (where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of bias), disqualification by conduct (where conduct in the course of, or outside, the proceedings gives rise to a reasonable apprehension of bias), disqualification by association (arising from some direct or indirect relationship, experience or contact with a person or persons interested in or involved in the proceedings) and disqualification by extraneous information (where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias).44
70 The plaintiffs' case thus appears properly characterised as being that the reasonable apprehension of bias arises from the association between the local government members of the JDAP and the Council of the Shire, which has a pecuniary interest in the grant of planning approval in order that the Contract will become unconditional. There is no allegation in this case that the Councillors have any personal interest in the outcome of the determination of the JDAP in relation to the development application, and I did not understand the plaintiffs to contend that the local government members should be taken to have prejudged the question whether the development application should be approved.
71 The first plank of the plaintiffs' case is that a fair-minded and informed observer would conclude that the Shire and its councillors want the Contract to be completed. The plaintiffs say that that is apparent from several factors. First, the plaintiffs point to the fact that the Shire entered into the First Contract with Devwest in April 2012, having been unable to sell the Land when it was offered for sale in June 2011. Secondly, the plaintiffs note that in order for the Contract to become unconditional, planning approval must be granted by the JDAP. Thirdly, having regard to the content of its Responsible Authority Report to the JDAP, the Shire clearly supports the development application. Fourthly, the Shire stands to receive a significant financial benefit ($5.75 million) if the Contract proceeds.
72 The second plank of the plaintiffs' case is that that the Councillors have full knowledge of the Contract and of the fact that it is conditional on the grant of planning approval by the JDAP, that the Councillors have each made a declaration that they will 'duly, faithfully, honestly and with integrity fulfil the duties of the office for the people in the district',45 and that in order to fulfil this oath, the councils 'are bound to do what is required to make the [Contract] unconditional'.46
73 Consequently, the plaintiffs contend that Mr Bertola, Mr James and Mr Fox are in a position of conflict as members of the Council on the one hand and members of the JDAP on the other, and that to permit any of the councillors to participate in the determination of the Development Application would affect the confidence of the community in the decision of the JDAP. The plaintiffs submit that high standards are applicable to the appearance of justice and fairness in official decision making in Australia.47
(b) The plaintiffs' claim of apprehended bias applies to the JDAP as a whole
74 Although their arguments are based on the association of the local government members of the JDAP with the Council of the Shire, the plaintiffs seek to restrain all of the members of the JDAP from determining the development application. Although the argument was not expressly put in this way, the plaintiffs' action proceeded on the basis that the apprehension of bias on the part of the local government members would necessarily infect, or taint, the decision of the JDAP as a whole – what has been colloquially referred to as the 'rotten apple in the barrel' principle.48
75 There have been numerous authorities, both in the administrative law context and outside it, dealing with the question whether bias or apprehended bias by one person will necessarily infect the entire decision making body of which that person is a member. These decisions were discussed in McGovern and Anor v Ku-Ring-Gai Council and Anor.49Spigelman CJ concluded that it was not the case that apprehended bias by one member of a decision making body would necessarily vitiate the decision of the whole body. His Honour was of the view that such a conclusion would depend on the circumstances of the statutory regime and of the case itself.50 Basten JA accepted that the authorities established the proposition that apprehended bias by one or more members of a decision-making body can vitiate the decision of the entire body because the courts will not inquire into the actual effect of a member's apprehended bias, if any, on the decision.51 Campbell JA preferred to decide the case on the basis of assuming, rather than deciding, that apprehended bias by one or more members of a decision making body could vitiate the decision of the entire decision making body.52
76 The issue was not the subject of submissions by the plaintiffs or the interveners. I have approached the issues of apprehended bias on the assumption that the apprehension of bias, which in this case is confined to the local government members of the JDAP and their association with the Council of the Shire, is capable of founding an apprehension of bias with respect to the JDAP as a whole, particularly as the DAP Regulations require that at least one local government member participate in any decision on the Development Application.
(c) The principles in relation to the test for a reasonable apprehension of bias
77 The principles in relation to the test for a reasonable apprehension of bias are well established, and I did not understand that the parties were at odds in relation to them.53 In the case of a judge exercising judicial power, the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is requested to decide.54
78 In deciding whether a judicial officer might not bring an impartial mind to the resolution of a dispute the question is one of possibility (real and remote) not probability.55 Nevertheless, apprehended bias must be quite firmly established: a vague sense of unease or disquiet is not enough.56
79 The application of the test for reasonable apprehension of bias requires two steps. First, there must be an identification of what it is said might lead the decision-maker to decide the matters in issue other than on their merits. Secondly, there must be an articulation of the logical connection between the matters in issue and the apprehended fear that those matters will not be decided on their merits.57
80 The application of the law relating to procedural fairness in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making. Rules developed in the context of judicial decision-making cannot be applied automatically to administrative decision making.58
81 For that reason, it is well-recognised that the content of the test for reasonable apprehension of bias can vary according to the circumstances.59 If a statute reposes a decision making power in a Minister, and the terms of the statute contemplate that the Minister will exercise that decision making power within the context of his or her role as a political official and a member of the executive government, it may be quite inappropriate to apply the same requirements of detachment to the Minister's conduct in exercising that decision-making power as would be applied to a judge.60 Similarly, if a statute reposes decision-making power in a council and the terms of the statute suggest that in making that decision, councillors will exercise that decision making power within the context of their role as members of a democratically elected body which takes into account a wide range of considerations, it may also be inappropriate to apply the same requirements of detachment as would be applied to a judge to the conduct of the councillors in exercising that decision-making power.61
82 The application of the test requires a consideration of all of the circumstances. These circumstances include the nature of the decision-making process including the statutory context and decision making structure, the task committed to the decision-maker and the position of the person making the decision,62 and the objective facts which are material to the allegation of apprehended bias.63 A consideration of these matters may lead to the conclusion that the degree of impartiality which should be expected of an administrative decision-maker in the particular circumstances is not as high or as stringent as will be expected of a judicial decision-maker.64
83 I turn to consider the content of the duty to afford procedural fairness, manifested in the bias rule, in this case.
(d) The content of the duty to afford procedural fairness – manifested in the bias rule – in this case
84 In order to ascertain the content of the reasonable apprehension of bias test in its application to the members of the JDAP it is necessary to consider the statutory context, the decision making structure under the PD Act and the DAP Regulations and the role of the local government members of the JDAP.
85 In my view, three considerations suggest that the fair minded observer would recognise that it is not appropriate to apply the same standards of detachment to the members of a JDAP as would be expected of a judicial decision-maker. These considerations are:
(i) the statutory planning context in which the DAP Regulations operate;
(ii) the requirements of the DAP Regulations in relation to the participation of local government members in JDAP determinations; and
(iii) the requirements of the DAP Regulations in relation to the impartiality of JDAP members.
86 I turn to explain each of these considerations.
(i) The statutory planning context in which the DAP Regulations operate
87 I start by noting that a local government, like any other corporate entity, may itself seek to engage in the development of land which first requires planning approval under a local planning scheme. In addition, a local government as a responsible authority under a town planning scheme may purchase or compulsorily acquire land for the purpose of that scheme.65 In those circumstances, the local government 'has all the powers of an owner in respect of the land'66 and thus would need to obtain planning approval in respect of any development of the land. The process for obtaining planning approval in a case where the local government body is itself the applicant for planning approval is not different from that where an application for planning approval simply pertains to land in respect of which the local government body is the responsible authority for planning approval purposes. In other words, the Parliament has not imposed a different planning regime even in those cases when the responsible authority itself is the applicant for planning approval.
88 The determination which is required to be made in respect of the Development Application in this case is one which would ordinarily have been determined by the Shire itself, as the responsible authority, in accordance with TPS3. However, because of the estimated cost of the development the DAP Regulations made pursuant to the PD Act67 require that the development application be determined by the JDAP68 as if it were the responsible authority under TPS3.
89 All of these considerations indicate that the planning approvals regime established under the PD Act and the DAP Regulations contemplates that in some cases a local government body may itself have a direct interest in an application for planning approval which either the local government body, or the JDAP, is required to determine.
(ii) The requirements of the DAP Regulations in relation to the participation of local government members in JDAP determinations
90 Although a JDAP will be required to consider applications for planning approval which are made by a local government, or applications in which a local government has an interest, the DAP Regulations require that the members of the JDAP include local government members. The DAP Regulations recognise that those persons are members of the JDAP in their capacity 'as representatives of the relevant local government in relation to the development application'.69 In other words, the association of the local government members of the JDAP with the local government of which they are members is not just acknowledged, but is expressly required, in the DAP Regulations.
91 In addition, a JDAP meeting to determine a development application (even an application made by the local government itself) will need to include at least one local government member to comprise a quorum.70
92 Further, the DAP Regulations require a significant contribution from the local government in relation to each development application considered by a JDAP. The responsible authority is required to provide a responsible authority report to the JDAP which provides sufficient information to enable the JDAP to determine the application, including a recommendation as to how the application should be determined.71 The JDAP is required to have regard to, but is not bound to give effect to, the recommendation included in that report.
93 Nothing in the PD Act or DAP Regulations dictates how the responsible authority's report is to be prepared (other than to require that it contains certain content, including the responsible authority's recommendation as to how an application should be determined). Although it appears that the responsible authority report in this case was not prepared by the Council of the Shire itself, the possibility cannot be excluded that the local government members on a JDAP will have prior knowledge of the basis for the responsible authority's recommendation about an application which, in their capacity as members of the JDAP, they will then be required to determine. In this case, two of the Councillors were present when the Council of the Shire voted in favour of offering the Land for sale.
94 These considerations highlight that the DAP Regulations do not require that JDAP members be detached from any association with local governments who may in some cases be applicants for, or have an interest in applications for, development approval. On the contrary, the DAP Regulations contemplate that the local government members of the JDAP will have an association with the local government in question and specifically require that the local government's views be taken into account.
(iii) The requirements of the DAP Regulations in relation to the impartiality of JDAP members
95 At the same time, however, neither the PD Act nor the DAP Regulations is oblivious to the need for impartiality in a JDAP's decision making. The PD Act requires that a member of a DAP must at all times act honestly in the performance of a function in connection with the carrying out of the PD Act, and if the member has a pecuniary interest in a particular matter for decision by the DAP, that interest must be declared, and the member must refrain from participating in that decision. It is an offence to fail to do so.72 The DAP Regulations also preclude members from receiving certain gifts and require members to declare that they have received others.73
96 In addition, the DAP Regulations are clearly aimed at ensuring transparency in the process of decision making by a JDAP. In addition to the fact that they specify the composition of the JDAP and the voting rights of members of a JDAP, the DAP Regulations require that the agenda for a meeting be published in advance of the meeting, that any meeting to determine a development application be held in public,74 and that minutes be kept of JDAP meetings.75
97 The DAP Regulations require that JDAP members comply with practice notes issued in relation to the practice and procedure of DAPs.76 Practice notes have been issued in the form of the DAP Standing Orders 2012. Those Orders require the members of a JDAP to declare any conflict of interest or interest which may bear upon their ability to be impartial in relation to a development application before the JDAP, and to refrain from participating in the JDAP decision in relation to that application. The Development Assessment Panel Code of Conduct issued under the DAP Regulations77 similarly requires JDAP members to declare any conflicts of interest or interests which may affect their impartiality in relation to a particular application and to refrain from participating in the JDAP's decision in relation to that application.78
98 It is apparent that these standards of conduct are directed to interests or associations other than that of a local government member with the local government which he or she represents on the JDAP. In other words, the standards of conduct promulgated under the DAP Regulations are consistent with the fact that local government members necessarily have an association with the local government which they represent on the JDAP.
99 Most significantly for present purposes, however, the Code of Conduct makes clear that a local government member of a DAP is not bound by any previous decision or resolution of the local government in relation to the subject-matter of a DAP application and although the member may vote for a decision that is the same as the recommendation made in the responsible authority report, the member must exercise independent judgment and consider the application on its merits.79 The Code of Conduct thus makes clear that although the local government members represent the local government body on the JDAP, they are expected to act independently of the local government in carrying out their role as members of the JDAP.
(iv) Conclusion in relation to the content of the duty
100 The considerations set out above indicate that local government members on a JDAP will inevitably have an association with the local government they represent, and that it is not possible for the local government members on the JDAP to avoid any such association by virtue of their presence on the JDAP as representatives of that body. Accordingly, an association of that kind could not of itself give rise to a reasonable apprehension of bias in this context.
101 At the same time, it is apparent that the PD Act and the DAP Regulations seek to ensure that all members of the JDAP are alert to the risk of conflicts of interest, and in relation to their association with the local government body are under a duty to exercise independent judgment, and to consider all planning applications on their merits, irrespective of the views of the local government in relation to those applications.
102 All of these considerations lead me to the view that the content of the duty of procedural fairness (in relation to the test for reasonable apprehension of bias) which is owed by the members of the JDAP, including the local government members, is that first, no member of the JDAP will participate in a decision on a development application in which they have a personal interest. Secondly, each of the members of the JDAP has a duty to consider each application on its merits. Thirdly, in the case of local government members, each member has a duty to exercise their own judgment (independent of the views of the local government body of which they are members) in relation to each application.
(e) Why the plaintiffs have not made out their claim of apprehended bias
103 In my view, it cannot be said that the hypothetical fair-minded person who is properly informed as to the statutory context and decision making structure, the role of the JDAP and of the local government members within it, and of the objective facts of this case, which are set out above, might reasonably apprehend that the members of the JDAP might not consider the Development Application on its merits, and in the case of the local government members, that they might not exercise their own judgment (independent of the views of the local government body of which they are members) in relation to that Application. That is so, having regard to the facts of this case, to the matters to which I have already referred in paragraphs [87] – [100], and to six considerations in particular.
104 First, there is nothing in the facts of this case to suggest that the members of the JDAP, including the Councillors, will be unable to bring an independent mind to their consideration of planning applications which they must consider.
105 Secondly, all of the JDAP members, including the Councillors, are subject to the requirement under the PD Act to act honestly, and to comply with the requirements of the Code of Conduct, particularly the requirement that they exercise independent judgment in determining how to vote.
106 Thirdly, the JDAP members comprise not just the Councillors, but the specialist members as well, and the local government members cannot, by themselves, approve a development application or constitute a majority at a DAP meeting. (If all five members of the JDAP attended a meeting to determine an application, that would involve the three specialist members, who have no connection with the local government. If four members of the JDAP attend a meeting and determine an application, that would involve at least two specialist members, and in the case of an equality of votes on the application, the presiding member of the JDAP would have the casting vote. Finally, if the minimum number of members for a quorum attend a meeting and determine an application, two of those members will be specialist members of the JDAP.80)
107 Fourthly, the meeting of the JDAP at which the Development Application is considered will be conducted in public, submissions can be (and have been) received from those opposing the application (including the plaintiffs), and minutes will be kept to record the decision of the JDAP. There is therefore a high level of transparency, and potential scrutiny, of the conduct of the members of the JDAP.
108 Fifthly, although the plaintiffs' contended that the Council of the Shire was subject to an implied contractual duty to do what it could to obtain planning approval for the proposed development, there was no basis for that implication, having regard to the evidence. Planning approval was not within the power of the Council to grant, and the obligation on the Council to provide a responsible authority report to the JDAP was one which existed by virtue of the DAP Regulations.
109 For completeness, I note that counsel for the plaintiffs placed some reliance on the decisions in F and D Bonaccorso Pty Ltd v City of Canada Bay Council81and Gwandalan Summerland Point Action Group Inc v Minister for Planning.82 To the extent that these caseswere relied upon by way of factual analogy, each of these cases is factually very different from the present case: Gwandalan involved a decision of a Minister, and Bonaccorso concerned a Council which had entered into a contractual obligation to exercise its planning discretion in a particular way. The preferable course in my view is to approach the content and application of the test for apprehension of bias by reference to the facts and legislative framework of the individual case. Recourse to other cases involving different factual and legislative frameworks is of limited utility in that analysis.
110 Sixthly, although the Councillors have a duty to 'faithfully, honestly and with integrity fulfil the duties of their office for the people of the [Shire]', if that oath has any bearing on their role as members of the JDAP, it is that the Councillors must act faithfully, honestly and with integrity when acting as local government members of the JDAP in accordance with the PD Act, the DAP Regulations, and the Code of Conduct made thereunder (which necessarily involves bringing an independent mind to each application under consideration by the JDAP). In those circumstances, there is no basis for the plaintiffs' submission that there is a conflict between the Councillors' duty as councillors, and their duty as JDAP members.
111 For all of these reasons I would dismiss the plaintiffs' action.
112 The Minister and Devwest sought to advance an alternative argument, namely that if participation by the local government members in the JDAP would give rise to a reasonable apprehension of bias, then the principle of statutory construction known as the 'doctrine of necessity' would operate to preserve the capacity of the JDAP to perform its statutory duty. In view of the conclusion I have reached in relation to the JDAP's duty to afford procedural fairness as it is manifested in the bias rule, it is unnecessary for me to consider this additional argument.
113 The interlocutory injunction should be discharged and the action dismissed. I will hear from the parties as to the form of the orders which should be made.
1 The land is comprised in Certificate of Title Volume 1818 Folio 415 and Certificate of Title Volume 1818 Folio 416 and is situated on the corner of Morrison Road and Farrell Road in Midvale.
2 The application was identified as being the subject of Department of Planning File No DP/12/00610, application No and File No 170364.
3 The first plaintiff is a director and shareholder of the second plaintiff. The second plaintiff owns land in Stratton on which is located a shopping centre. The third plaintiff is a tenant of part of the Darling Ridge Shopping Centre and carries on an IGA supermarket there.
4 PD Act s 162.
5 On 31 July 2012 the Shire resolved to adopt Local Planning Scheme No 4 (LPS4) with modifications, and to forward the same to the Hon. Minister for Planning and the Western Australian Planning Commission for approval pursuant to reg 18 of the Town Planning Regulations 1967. LPS4 has not yet been approved by the Minister pursuant to s 87(2) of the Planning and Development Act 2005 (the PD Act) and TPS3 remains in force.
6 Clause 6.6(6) of TPS3.
7 Clause 6.6(8) of TPS3.
8 PD Act s 171A(2)(a) and Planning and Development (Development Assessment Panels) Regulations 2011 reg 5(c) and reg 8.
9Planning and Development (Development Assessment Panels) Regulations 2011 reg 16.
10 Clause 8.8 of TPS3 and Part 14 of the PD Act. A 'deemed refusal' is defined in cl 6.6(10) of TPS3.
11 DAP Regulations reg 18.
12 DAP Regulations reg 25(1).
13 DAP Regulations reg 28.
14 DAP Regulations reg 41(2).
15 DAP Regulations reg 42(1).
16 DAP Regulations reg 42(2).
17 DAP Regulations reg 42(1).
18 DAP Regulations reg 40(5).
19 DAP Regulations reg 45(2).
20 Clause 3.1 of the First Contract.
21 In accordance with cls 6.6(2) - (4) of TPS3
22 During the period in which a proposal is exhibited any person may make a written submission to the Council in relation to the proposal Clause 6.6(5) of TPS3.
23 DAP Regulations reg 12(2).
24 DAP Regulations reg 12(5).
25Local Government (Constitution) Regulations 1998 (WA), reg 13(1) and Form 7.
26Re Judiciary and Navigation Act (1921) 29 CLR 257; Commonwealth v Queensland (1975) 134 CLR 298; Melfont v AG (Queensland) (1991) 173 CLR 289; Croome v Tasmania(1997) 191 CLR 119; Abebe v Commonwealth (1999) 197 CLR 510; Wong v The Queen (2002) 207 CLR 344.
27 Annexure CWF1 to the affidavit of Chad Ferguson sworn 21 March 2013.
28Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission[2007] WASAT 303 at [65] (Mr P McNab); Friends of Elliston - Environment and Conservation Inc v State of South Australia and Ors(2007) 96 SASR 246, 277 [129] (Bleby J); Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1983) 32 SASR 145, Bleechomre and Ors(1983) 32 SASR 145.
29Town Planning Scheme, Form 1.
30Friends of Elliston – Environment and Conservation Inc v State of South Australia and Ors(2007) 96 SASR 246, 277 [129] (Bleby J); see also Jolly v District Council of Yankalilla[2006] SASC 53 at [46] – [52].
31 The plaintiffs commenced an action seeking to compel Devwest to withdraw its Development Application, and seeking to restrain the Shire from evaluating or accepting an offer to purchase the Land. The plaintiffs' application for an interlocutory injunction to restrain the Shire was refused: Aloi v Shire of Mundaring[2013] WASC 101.
32 Transcript, 16 April 2013 at 122.
33Osborne v Landpower Developments Pty Ltd[2003] WASCA 117 [12] - [14], citing Smith v New South Wales Bar Association(1992) 176 CLR 256, 266 - 267.
34 See Australian Electrical Eletronics Foundry and Engineering Union (WA Branch) v Hamersley Iron Pty Ltd(1998) 19 WAR 145,160, 162 and 163.
35Osborne v Landpower Developments Pty Ltd[2003] WASCA 117 [12] - [14].
36Myra Pty Ltd v Thompson[2011] WASC 230 [29] (Le Miere J).
37 See Nicholls and Western Australian Planning Commission[2005] WASAT 40 [39] - [45] (Senior Member Parry); Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98[159] (Chaney J, Mr Parry, Ms Connor).
38 Plaintiffs' supplementary submissions 2 April 2013 at [14].
39Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403[267] (Buss JA, Wheeler JA & Pullin JA agreeing), citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam(2003) 214 CLR 1 [81] - [83].
40Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138[64] (McLure JA, Wheeler JA and Pullin JA agreeing), citing Hot Holdings Pty Ltd v Creasy(2002) 210 CLR 438 [21] (Gleeson CJ).
41 See for example, PD Act s 266(2) (the requirement to act honestly in the performance of functions), DAP Regulations reg 17(5) (duty to provide reasons), 40(3) (submissions may be made to the DAP in respect of a development application) and 46 (prohibition on receipt of certain gifts and a requirement to declare others).
42 See transcript 9 November 2012 at 57 – 58.
43 Transcript 9 November 2012 at 59. In relation to standing, see the discussion in M. Aronson and M. Groves, Judicial Review of Administrative Action (5th ed) 2013 at [11.50] – [11.60], Bateman's Bay Local Aboriginal Land Council and Anor v Aboriginal Community Benefit Fund Pty Limited and Anor(1998) 194 CLR 247 at [24] – [50] (Gaudron, Gummow and Kirby JJ); and see also M. Leeming "Standing to Seek Injunctions" (2006) 1 Journal of Equity 3.
44Webb v The Queen(1994) 181 CLR 41 at 74 (Deane J).
45Local Government (Constitution) Regulations 1998 reg 13(1)(c) and Form 7.
46 Plaintiffs' submissions 30 October 2012 [49].
47 Plaintiffs' submissions 30 October 2012 [46].
48McGovern and Anor v Ku-ring-gai Council and Anor(2008) 72 NSWLR 504 at [31] (Spigelman CJ).
49McGovern and Anor v Ku-ring-gai Council and Anor(2008) 72 NSWLR 504 at [31] - [47] (Spigelman CJ), [84] - [103] (Basten JA) and [238] - [253] (Campbell JA).
50McGovern and Anor v Ku-ring-gai Council and Anor(2008) 72 NSWLR 504 [31] (Spigelman CJ).
51McGovern and Anor v Ku-ring-gai Council and Anor(2008) 72 NSWLR 504 [100] (Basten JA).
52McGovern and Anor v Ku-ring-gai Council and Anor(2008) 72 NSWLR 504 [237] (Campbell JA).
53 Transcript 9 November 2012 at 65 - 68 where counsel for the plaintiffs made clear that while he relied upon the decision of Lloyd J in Gwandalan Summerland Point Action Group Inc v Minister for Planning(2009) 75 NSWLR 269 he did not rely on his Honour's criticisms of the observations of McLure J in Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138.
54Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138 [67] (McLure JA, Wheeler JA & Pullin JA agreeing), citing Johnson v Johnson(2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
55Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138 at [67] - [68] (McLure JA, Wheeler JA & Pullin JA agreeing), citing Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337 [7] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
56Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403 [275] (Buss JA, Wheeler JA & Pullin JA agreeing), citing R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group(1969) 122 CLR 546, 553; Jia Legeng[135].
57Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403 [274] (Buss JA, Wheeler JA & Pullin JA agreeing), citing Ebner[8].
58Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403 [268] (Buss JA, Wheeler JA & Pullin JA agreeing), citing Ebner[4], Jia Legeng [99] - [100] (Gleeson CJ & Gummow J), [177] - [192] (Hayne J); Hot Holdings v Creasy[70].
59Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138 [66] (McLure JA, Wheeler JA & Pullin JA agreeing), citing Ebner [4], Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507 [99] (Gleeson CJ & Gummow J).
60 See, for example, Jia Legeng[102] (Gleeson CJ and Gummow J).
61 See, for example, the discussion in McGovern v Ku-Ring-Gai Council(2008) 72 NSWLR 504 [6] - [8] and [13] (Spigelman CJ) and [80] (Basten JA).
62Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138 at [69] (McLure JA, Wheeler JA & Pullin JA agreeing), citing Jia Legengat [78], [187]; Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403 [273] (Buss JA, Wheeler JA & Pullin JA agreeing).
63Re Minister for Resources; ex parte Cazaly Iron Pty Ltd and Anor(2007) 34 WAR 403 [273] (Buss JA, Wheeler JA & Pullin JA agreeing).
64Re MacTiernan; ex parte Coogee Coastal Action Coalition Inc(2005) 30 WAR 138 [71] (McLure JA, Wheeler JA & Pullin JA agreeing).
65 PD Act s 190 and s 191.
66 PD Act s 193.
67 PD Act s 171A.
68 DAP Regulations reg 5(c).
69 DAP Regulations reg 25(1)(a).
70 DAP Regulations reg 41(2).
71 DAP Regulations reg 12(5).
72 PD Act s 266(1), (2) and (3).
73 DAP Regulations
74 DAP Regulations reg 40(2).
75 DAP Regulations reg 44.
76 DAP Regulations reg 40(5).
77 DAP Regulations reg 45(1).
78 See Part 3 of the Code of Conduct.
79Development Assessment Panel Code of Conduct 2011 cl 2.1.2.
80 DAP Regulations reg 41(2) and 42.
81 (2007) 157 LGERA 250.
82 (2009) 75 NSWLR 269.
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